Factual background
The Applicant instituted proceedings relating to the events in eastern Ukraine, alleging that the Russian Federation failed to take measures to prevent and suppress the commission of offences of terrorism financing. In particular, the Applicant refers to acts and armed activities in eastern Ukraine allegedly perpetrated by armed groups linked to two entities that refer to themselves as the “Donetsk People’s Republic” (DPR) and the “Luhansk People’s Republic” (LPR). Other acts to which the Applicant refers were allegedly perpetrated by armed groups and individuals in other parts of Ukraine.
The Applicant refers to events which took place in Crimea from early 2014, after the Russian Federation took control over the territory of the Crimean peninsula, alleging that the Russian Federation has engaged in a campaign of racial discrimination depriving Crimean Tatars and ethnic Ukrainians in Crimea of their political, civil, economic, social and cultural rights in violation of its obligations under CERD.
- disappearances, murders, abductions and torture of Crimean Tatars and ethnic Ukrainians;
- law enforcement measures including searches, detentions and prosecutions;
- the ban on the Mejlis;
- measures relating to citizenship;
- suppression of culturally significant gatherings;
- restrictions on media outlets;
- measures relating to cultural heritage and education.
Case geography
Legal issues
Subject-Matter of the Dispute
In so far as its first aspect is concerned, the subject-matter of the dispute is whether the Russian Federation had the obligation, under the ICSFT, to take measures and to co-operate in the prevention and suppression of the alleged financing of terrorism in the context of events in eastern Ukraine and, if so, whether the Russian Federation breached such an obligation.
Ukraine further alleges violations of Article 8 (failure to freeze or seize funds used for terrorism financing), Articles 9 and 10 (failure to investigate, extradite or prosecute alleged offenders), and Article 12 (failure to provide the greatest measure of assistance in connection with criminal investigations).
The subject-matter of the dispute, in so far as its second aspect is concerned, is whether the Russian Federation breached its obligations under CERD through discriminatory measures allegedly taken against the Crimean Tatar and Ukrainian communities in Crimea.
In Ukraine’s view, a “pattern of conduct” and “campaign of racial discrimination” by the Russian Federation violates CERD, as demonstrated by illustrative individual instances of discriminatory acts which, when viewed as a whole, support the conclusion that the Russian Federation has engaged in a systematic campaign of discrimination. Ukraine alleges violations of CERD Articles 2, 4, 5, 6 and 7.
Standard of Proof
The Parties disagree on the applicable standard of proof. Ukraine argues that the Court should apply a standard of “sufficient” or “convincing” evidence, and argues in favour of a more liberal recourse to inferences of fact and circumstantial evidence where relevant evidence may be outside its “exclusive territorial control”. The Russian Federation asserts that Ukraine must prove the commission of terrorism financing offences with evidence that is “fully conclusive”.
The Court recalls that it has sometimes “allowed . . . a more liberal recourse to inferences of fact and circumstantial evidence” when a State lacks effective control over the territory where evidence is located. This practice may be relevant for certain allegations made in the present case regarding conduct that took place in areas over which Ukraine lacks effective control.
Ukraine’s claims, while undoubtedly serious, are not of the same gravity as those relating to the crime of genocide and do not require the application of a heightened standard of proof. The Court will determine whether the evidence adduced by Ukraine is convincing.
Legal position of the Court
Preliminary Determinations
Clean Hands Doctrine
The Russian Federation requests the Court to dismiss Ukraine’s claims under the ICSFT on the grounds that the Applicant comes to the Court with “unclean hands”. The Russian Federation argues that Ukraine has itself engaged in serious misconduct or wrongdoing that has a close connection with the relief that it seeks.
The Court considers that the “clean hands” doctrine cannot be applied in an inter-State dispute where the Court’s jurisdiction is established and the application is admissible. Accordingly, the invocation of the “clean hands” doctrine as a defence on the merits by the Russian Federation must be rejected.
“Funds” under the ICSFT
The Court concludes that the term “funds”, as defined in Article 1 of the ICSFT and used in Article 2 of the ICSFT, refers to resources provided or collected for their monetary and financial value and does not include the means used to commit acts of terrorism, including weapons or training camps. Consequently, the alleged supply of weapons to various armed groups operating in Ukraine, and the alleged organization of training for members of those groups, fall outside the material scope of the ICSFT. In the present case, therefore, only monetary or financial resources provided or collected for use in carrying out acts of terrorism may provide the basis for the offence of terrorism financing, assuming that the other elements of the offence referred to in Article 2, paragraph 1, are also present.
Racial Discrimination – CERD Article 1(1)
“Racial discrimination” under Article 1, paragraph 1, of CERD consists of two elements:
- a “distinction, exclusion, restriction or preference” must be “based on” one of the prohibited grounds
- such a differentiation of treatment must have the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights”.
A measure whose stated purpose is unrelated to the prohibited grounds contained in Article 1, paragraph 1, does not constitute, in and of itself, racial discrimination by virtue of the fact that it is applied to a group or to a person of a certain race, colour, descent, or national or ethnic origin. However, racial discrimination may result from a measure which is neutral on its face, but whose effects show that it is “based on” a prohibited ground. This is the case where convincing evidence demonstrates that a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1. Mere collateral or secondary effects do not, in and of themselves, constitute racial discrimination.
Findings under the ICSFT
Article 18: Cooperation in Prevention
No violation establishedUkraine claims that the Russian Federation is responsible for violations of Article 18 by failing to take the practicable measures of: (i) preventing Russian state officials and agents from financing terrorism in Ukraine; (ii) discouraging public and private actors and other non-governmental third parties from financing terrorism in Ukraine; (iii) policing its border with Ukraine to stop the financing of terrorism; and (iv) monitoring and suspending banking activity and other fundraising activities undertaken by private and public actors on its territory to finance . . . terrorism in Ukraine.
Unlike Article I of the Genocide Convention, which imposes the obligation to “prevent” a harmful act from occurring, the obligation under Article 18, paragraph 1, refers to the obligation to “cooperate in the prevention” of terrorism financing. It is not necessary to find that the offence of terrorism financing has been committed for a State party to have breached its obligations under Article 18.
Ukraine requests that the Court find that the Russian Federation violated its obligations under the ICSFT because of an alleged policy of financing armed groups in eastern Ukraine. This request does not fall within the scope of Article 18 and therefore cannot be upheld, as well as the alleged failure to investigate terrorism financing and failing to monitor and disrupt certain fundraising networks operating in its territory. With respect to border policing, Ukraine’s evidence is limited to allegations relating to the supply of weapons and ammunition, which falls outside the material scope of the ICSFT. The Russian Federation was also not under an obligation to designate the DPR or LPR as a terrorist entity under its domestic law. The Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 18, paragraph 1.
Article 8: Freezing of Funds
No violation establishedUkraine claims that the Russian Federation is responsible for violations of Article 8 of the ICSFT by failing to identify and detect funds used or allocated for the purposes of financing terrorism in Ukraine, and by failing to freeze or seize funds used or allocated for the purpose of financing terrorism in Ukraine.
The obligation under Article 8 to freeze funds only comes into operation when the relevant State party has reasonable grounds to suspect that those funds are to be used for the purpose of terrorism financing. After examining Ukraine’s requests for legal assistance and notes verbales, the Court concludes that they do not contain sufficiently specific and detailed evidence to give the Russian Federation such reasonable grounds. In particular, the documents provide only vague and highly generalized descriptions of the alleged acts. The evidence does not demonstrate the funders’ “knowledge” that the funds provided would be used to commit acts qualifying as predicate acts. The Court concludes that it has not been established that the Russian Federation has violated its obligations under Article 8, paragraph 1.
Article 9: Investigation
Violation establishedUkraine claims that the Russian Federation has violated Articles 9 and 10 of the ICSFT by failing to investigate the facts concerning persons who have committed or are alleged to have committed terrorism financing in Ukraine, and to extradite or prosecute alleged offenders.
For the obligation to investigate to arise, Article 9, paragraph 1, requires only that a State party receive information that a person alleged to have committed the offence of terrorism financing may be present in its territory. It is notable that, almost one year after receiving the Ukrainian allegations, the Russian Federation appeared to have failed even to identify several of the alleged offenders. No clear information was provided by the Respondent concerning those alleged offenders described in the Ukrainian communications as being present in Russian territory. The Court concludes that the Russian Federation has violated its obligations under Article 9, paragraph 1, of the ICSFT.
Article 10: Prosecution
No violation establishedWith respect to Article 10, the decision to submit a case to the competent authorities for purposes of prosecution requires, at a minimum, reasonable grounds to suspect that an offence has been committed. Given that the information provided by Ukraine did not give rise to such reasonable grounds, the Court does not consider that the Russian Federation was obligated to submit any specific cases for prosecution. The Court concludes that it has not been established that the Russian Federation violated its obligations under Article 10.
Article 12: Mutual Legal Assistance
No violation establishedUkraine claims that the Russian Federation has violated Article 12 of the ICSFT by failing to provide Ukraine the greatest measure of assistance in connection with criminal investigations in respect of terrorism financing offenses.
Ukraine relies upon at least 12 requests for legal assistance. The Court limits its analysis to three requests - those of 11 November 2014, 3 December 2014 and 28 July 2015 - concerning allegations that citizens of the Russian Federation were involved in fundraising for the DPR or LPR. The remaining nine requests concerned allegations relating to the provision of weapons, ammunition and military equipment, which fall outside the scope of the ICSFT. None of the three relevant requests described in any detail the commission of alleged predicate acts by the recipients of the funds, nor did they indicate that the alleged funders knew the funds would be used for such acts. The Court concludes that it has not been established that the Russian Federation violated its obligations under Article 12, paragraph 1.
Findings under CERD
Disappearances, Murders, Abductions and Torture
No violation establishedUkraine refers to 13 incidents of physical violence against named Crimean Tatars and ethnic Ukrainians as “illustrations” of what it considers to be the Russian Federation’s “systematic pattern of violence and intimidation”. According to Ukraine, the acts of physical violence of which it complains were based on a racial or ethnic distinction. In support of its assertion, Ukraine contends that the acts targeted prominent activists, thereby depriving the Crimean Tatar and ethnic Ukrainian communities respectively of current or potential future leaders. Ukraine argues that these acts were designed to force into submission ethnic groups presumed to be opposing the Russian occupation.
The Court must first examine whether the acts of physical violence alleged by Ukraine constitute instances of racial discrimination. Reports confirm that physical violence in Crimea was not only suffered by Crimean Tatars and ethnic Ukrainians, but also by persons of Russian and Central Asian origin. The Court acknowledges that Ukraine is not in a position to provide further evidence owing to its lack of access to Crimea. However, even when allowing a more liberal recourse to inferences of fact and circumstantial evidence, the Court is not convinced by the evidence that Crimean Tatars and ethnic Ukrainians were subjected to acts of physical violence based on their ethnic origin. Nor does the evidence establish that the Russian Federation failed to effectively investigate whether the acts complained of amount to racial discrimination.
Law Enforcement Measures
No violation establishedAccording to Ukraine, the Russian Federation violated CERD, in particular Articles 2, paragraph 1, 4, 5 (a) and 6, by singling out and subjecting both the Crimean Tatar leadership and the wider Crimean Tatar population to manifestly disproportionate law enforcement measures based on its anti-extremism laws, in particular in the form of arbitrary searches, detentions and prosecutions.
In this regard, no evidence has been put before the Court which would suggest that the purpose of the relevant domestic law is to differentiate between persons based on a prohibited ground. The domestic legal framework regulates the prevention, prosecution, and punishment of broadly defined criminal offences. Ukraine has not provided evidence that this legal framework is likely to produce a disparate adverse effect on the rights of Crimean Tatars or ethnic Ukrainians as a matter of legal purpose.
Ukraine argues that the Russian Federation has subjected the wider Crimean Tatar community to arbitrary searches and detentions in order to unsettle the entire community. According to Ukraine, since the referendum in March 2014, these practices have included conducting searches of Crimean Tatar mosques, schools and private homes, which have continued after the filing of the Application by Ukraine. Ukraine points out that the measures of the Russian Federation against “religious” extremism, including against members of Hizb-ut Tahrir or Tablighi Jamaat, were pretextual and disproportionately affected the predominantly Muslim Crimean Tatar community. Ukraine also argues that the Russian Federation violated Article 4 by targeting Crimean Tatars as religious extremists, thereby fuelling mutual distrust between ethnic communities and making racial discrimination more likely.
The Court considers that the context in which the measures were taken indicates that they were in response to the political opposition that these persons and institutions displayed against the exercise of territorial control by the Russian Federation in Crimea.
However, the Court attributes considerable weight to reports of several United Nations organs and monitoring bodies according to which the measures in question disproportionately affected Crimean Tatar persons - in particular reports by the United Nations Secretary-General and the OHCHR, which state that “Crimean Tatars were disproportionately subjected to police and FSB raids of their homes, private businesses or meeting places, often followed by arrests”. The Court finds that Ukraine has sufficiently demonstrated that the law enforcement measures concerned produced a disparate adverse effect on the rights of persons of Crimean Tatar origin.
With respect to Article 4, the Court is not convinced that Ukraine has presented convincing evidence that statements have been made by State officials of the Russian Federation directed against Crimean Tatars based on their ethnic or national origin. Nor did Ukraine prove its allegation that the Russian Federation failed to prevent, eradicate and punish speech by private persons seeking to promote or justify racial hatred based on national or ethnic origin.
As regards measures taken against the Mejlis leadership prior to the ban, the Court considers that the context in which those measures were taken indicates they were in response to the political opposition that these persons and institutions displayed against the exercise of territorial control by the Russian Federation in Crimea, rather than on grounds of ethnic origin.
Ban on the Mejlis
No violation establishedIn Ukraine’s view, the ban of the Mejlis forms part of the Russian Federation’s “disinformation campaign” designed to dismantle the Crimean Tatar community’s central political and cultural institution and to vilify Crimean Tatars and thus violates Article 4. Ukraine further alleges that the courts of the Russian Federation participated in the discriminatory conduct by brushing off applications by Crimean Tatar litigants seeking review of the ban of the Mejlis and that the Russian Federation therefore also violated its obligation under Article 6 of CERD.
The ban entails the exclusion of the Mejlis from public life in Crimea. However, for the ban to amount to racial discrimination, Ukraine would also need to demonstrate that this exclusion was based on the ethnic origin of the Crimean Tatars as a group or of the members of the Mejlis. The Court is of the view that the Mejlis is neither the only, nor the primary institution representing the Crimean Tatar community - the Qurultay has not been banned, nor is there sufficient evidence that it has been effectively prevented from fulfilling its representative role.
Based on the evidence before it, it appears to the Court that the Mejlis was banned due to the political activities carried out by some of its leaders in opposition to the Russian Federation, rather than on grounds of their ethnic origin. The Court concludes that Ukraine has not provided convincing evidence that the ban of the Mejlis constitutes an act of discrimination within the meaning of Article 1, paragraph 1, of CERD.
Citizenships
No violation establishedUkraine claims that the Russian Federation violated its obligations under CERD through the introduction of its own nationality and immigration framework into Crimea. In Ukraine’s view, discrimination stems from the fact that the Russian Federation has forced members of the Ukrainian and Crimean Tatar ethnic groups to choose between receiving Russian citizenship and swearing allegiance to the Russian Federation or retaining Ukrainian citizenship and accepting restrictions on their civil and political rights on the territory of Crimea.
The Court does not find that Ukraine has convincingly established that the application of the Russian citizenship régime in Crimea amounts to a differentiation of treatment based on ethnic origin. To establish discrimination against Crimean Tatars and ethnic Ukrainians based on their ethnic origin, Ukraine mainly relies on the difficulty faced by the persons concerned when choosing between the legal consequences of adopting Russian citizenship or retaining Ukrainian citizenship. However, the Court is of the view that those legal consequences flow from the status of being either a Russian citizen or a foreigner. The respective status applies to all persons over whom the Russian Federation exercises jurisdiction regardless of their ethnic origin. While the measures may affect a significant number of Crimean Tatars or ethnic Ukrainians residing in Crimea, this does not constitute racial discrimination under the Convention.
Culturally Significant Gatherings
No violation establishedUkraine contends that the Russian Federation violated its obligations under CERD by suppressing gatherings that are of cultural importance to both the Crimean Tatar and the ethnic Ukrainian communities.
The Court considers it to be proved that the Russian Federation imposed restrictive measures regarding the celebration of Ukrainian Flag Day and the birthday of Taras Shevchenko, and that these measures produced a disparate adverse effect on the rights of persons of ethnic Ukrainian origin. However, the Russian Federation has provided explanations for these restrictions that do not relate to a prohibited ground under Article 1, paragraph 1.
Media Outlets
No violation establishedUkraine claims that the Russian Federation violated its obligations under CERD by imposing restrictions on persons and institutions representing the media serving the Crimean Tatar and ethnic Ukrainian communities in Crimea In support of its allegations, Ukraine further points to individual instances of denial of registration and re-registration, and harassment of media organizations and journalists.
The Court observes that there is no convincing evidence that the purpose of the relevant domestic legislation is to differentiate between media outlets affiliated with persons of Crimean Tatar or ethnic Ukrainian origin based on a prohibited ground. On the evidence submitted by Ukraine, the Court cannot find that the measures taken against Crimean Tatar and Ukrainian media outlets were based on the ethnic origin of the persons affiliated with them.
Cultural Heritage and Cultural Institutions
No violation establishedUkraine submits that the Russian Federation violated its obligations under CERD by undertaking a “general assault” on the cultural heritage of Crimean Tatar and ethnic Ukrainian communities, particularly through the destruction, demolition, failure to preserve and closure of historically and culturally significant sites and institutions.
The Court states that even if the preservation works undertaken by the Russian Federation with respect to the Khan’s Palace were carried out negligently, the Court is not convinced that such negligence would amount to discrimination based on the ethnic origin of Crimean Tatars. Ukraine has not sufficiently substantiated the alleged degradation of other Crimean Tatar or ethnic Ukrainian cultural sites.
Education
Violation establishedUkraine asserts that the Russian Federation has used changes to the educational system in Crimea to promote Russian language and culture at the expense of Ukrainian and Crimean Tatar languages and cultures and has taken measures impeding the education of school children from the two communities, thereby violating the prohibition of acts and practices of racial discrimination under Article 2, paragraph 1 (a), of CERD, as well as the obligation under Article 5 (e) (v) of CERD to guarantee equality before the law in the enjoyment of the right to education and training.
Most of the measures complained of by Ukraine concern limitations to the availability of Ukrainian or Crimean Tatar as the language of instruction in primary schools. Language is often an essential social bond among the members of an ethnic group. Restrictive measures taken by a State party with respect to the use of language may therefore in certain situations manifest a “distinction, exclusion, restriction or preference based on . . . descent, or national or ethnic origin” within the meaning of Article 1, paragraph 1, of CERD.
Access to education in the Ukrainian language: The Russian Federation exercises full control over the public school system in Crimea, including over the language of instruction. However, it has not provided a convincing explanation for the sudden and radical changes in the use of Ukrainian as a language of instruction, which produces a disparate adverse effect on the rights of ethnic Ukrainians. The Court is of the view that the Russian Federation has not demonstrated that it complied with its duty to protect the rights of ethnic Ukrainians from a disparate adverse effect based on their ethnic origin by taking measures to mitigate the pressure resulting from the exceptional “reorientation of the Crimean educational system towards Russia”.
Access to education in the Crimean Tatar language: The Court notes with concern that there has been one instance of a textbook which referred to the history of the Crimean Tatar community in a discriminatory way. However, the Court considers that Ukraine has not refuted the assertion of the Russian Federation that this was an isolated case which was remedied following an appeal by representatives of the Crimean Tatar community. The Court is unable to conclude that the quality of education in the Crimean Tatar language has significantly deteriorated since 2014. With respect to Article 7, the evidence before the Court does not demonstrate that the Russian Federation failed to adopt immediate and effective measures against racial discrimination, and the Court concludes that no violation of Article 7 has been established.
The Court concludes that the Russian Federation has violated its obligations under Article 2, paragraph 1 (a), and Article 5 (e) (v) of CERD by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language.
Order on Provisional Measures of 19 April 2017
The court also notes that the order dated April 19, 2017, specified the following provisional measures:
"(1) With regard to the situation in Crimea, the Russian Federation must, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, (a) Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis; (b) Ensure the availability of education in the Ukrainian language; (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve."
§ 376
(a) The Mejlis
Violation establishedNot to restrict the Mejlis
Ukraine argued that Russia had violated the order by failing to lift the ban on the Mejlis. The fact that the ban remained in place was not disputed between the parties. The key issue was whether the reference in the preamble to the measure to Russia’s obligations under CERD conferred discretionary powers regarding its implementation.
The Court rejected Russia’s argument:
"The Court is of the view that the reference in the Order of 19 April 2017 to the obligations of the Russian Federation under CERD does not provide any scope for the Russian Federation to assess, for itself, whether the ban on the Mejlis and the confirmation of the ban by the Russian courts were, and remain, justified. The wording in the chapeau ‘in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination’ refers to the source of the rights that the measure seeks to preserve and does not qualify the measure nor confer discretion upon the Party addressed to decide whether or not to implement the indicated measure.”
§ 391
“The Court therefore finds that the Russian Federation, by maintaining the ban on the Mejlis, has violated the Order indicating provisional measures. The Court notes that this finding is independent of the conclusion set out above that the ban on the Mejlis does not violate the Russian Federation’s obligations under CERD.”
§ 392
(b) Education in the Ukrainian language
No violation establishedEnsure Ukrainian-language education
The Court noted that the Order required only that education be accessible, not that a specific level of coverage be achieved:
"The Court notes that the Order of 19 April 2017 required the Russian Federation to ensure that education in the Ukrainian language remains ‘available’. In this regard, the Court takes note of a report by the OHCHR, according to which ‘instruction in Ukrainian was provided in one Ukrainian school and 13 Ukrainian classes in Russian schools attended by 318 children’ … which confirms that instruction in the Ukrainian language was available after the adoption of the Order."
§ 394
“The Court therefore concludes that the Russian Federation has not violated the Order in so far as it required the Respondent to ensure the availability of education in the Ukrainian language.”
§ 395
(c) Failure to defuse the dispute
Violation establishedNot to aggravate the dispute
The Court noted:
"The Court observes that, subsequent to the Order indicating provisional measures, the Russian Federation recognized the DPR and LPR as independent States and launched a 'special military operation' against Ukraine. In the view of the Court, these actions severely undermined the basis for mutual trust and co-operation and thus made the dispute more difficult to resolve."
"For these reasons, the Court concludes that the Russian Federation violated the obligation under the Order to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve."
§ 397–398
Legal consequences
The Court,
Finds that the Russian Federation, by failing to take measures to investigate facts contained in information received from Ukraine regarding persons who have allegedly committed an offence set forth in Article 2 of the International Convention for the Suppression of the Financing of Terrorism, has violated its obligation under Article 9, paragraph 1, of the said Convention;
Rejects all other submissions made by Ukraine with respect to the International Convention for the Suppression of the Financing of Terrorism;
Finds that the Russian Federation, by the way in which it has implemented its educational system in Crimea after 2014 with regard to school education in the Ukrainian language, has violated its obligations under Articles 2, paragraph 1 (a), and 5 (e) (v) of the International Convention on the Elimination of Racial Discrimination;
Rejects all other submissions made by Ukraine with respect to the International Convention on the Elimination of Racial Discrimination;
Finds that the Russian Federation, by maintaining limitations on the Mejlis, has violated its obligation under paragraph 106 (1) (a) of the Order of 19 April 2017 indicating provisional measures;
Finds that the Russian Federation has violated its obligation under paragraph 106 (2) of the Order of 19 April 2017 indicating provisional measures to refrain from any action which might aggravate or extend the dispute between the Parties, or make it more difficult to resolve;
Rejects all other submissions made by Ukraine with respect to the Order of the Court of 19 April 2017 indicating provisional measures.
However, the Court once again decided not to order any specific legal remedies. Consequently, his decision will have no practical consequences, but will only have significant factual and legal implications.